Another driver who challenged the constitutionality of the city’s Right of Way Law after killing someone in a crosswalk has pled guilty after a judge ruled against him.

On February 29, 2016, Buddhi Gurung hit 77-year-old Carol Dauplaise with a Toyota livery cab while turning left at the corner of Madison Avenue and E. 36th Street. Witnesses lifted the car off Dauplaise, but she died from her injuries.

Carol Dauplaise

Gurung was charged with a misdemeanor under Section 19-190, and careless driving, which is a traffic infraction.

In court, Gurung argued that the city’s Right of Way Law unconstitutionally relies on a civil or “ordinary” negligence standard to prove failure to exercise due care, and claimed the law conflicts with state code. Defending the statute, Manhattan District Attorney Cy Vance’s office countered that the law’s due care requirement is identical to the standard established by VTL 1146, also known as Hayley and Diego’s Law, which was adopted by the state in 2010.

Last month, Judge Heidi C. Cesare denied Gurung’s motion to dismiss the charge. “A conviction under [Section 19-190] requires proof of a defendant’s failure to exercise due care,” Cesare wrote. “[T]he defendant has failed to overcome the presumption of validity [of the law] and has not adequately demonstrated that applying such a statute would result in arbitrary or discriminatory enforcement by the police.”

Cesare agreed with police and prosecutors that Gurung failed to act with due care. From the ruling:

The information sets forth that the defendant operated a vehicle that made contact with a pedestrian who had the right of way causing injury to the pedestrian. On these alleged facts and circumstances, the court may reasonably infer that defendant failed in his obligation to carefully look out for pedestrians, to see what there is to be seen, and to use reasonable care to avoid hitting any pedestrian on the roadway.

Cesare also rejected the claim that Section 19-190 is preempted by state law.

This week Gurung pled guilty to the misdemeanor right of way violation and failure to exercise due care. He was fined $750 and ordered to take a driving course, according to Vance’s office. More important is that Gurung’s license was revoked for six months, after which he may apply to the state Department of Motor Vehicles to have his driving privileges reinstated.

This case marked the second time Vance has successfully fended off a challenge to the Right of Way Law. In January 2016 a judge ruled against cab driver MD Hossain, the first person charged under Section 19-190, who killed pedestrian Silvia Gallo on the Upper East Side.

I don’t understand why the law doesn’t hold drivers responsible if they hit or kill a pedestrian. They should be responsible for seeing where they are going. If their vehicle has blind spots, such as big trucks and garbage trucks do, they should not be allowed in the city.

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